Supreme Court dismisses Pharmacy Council of India appeals against orders setting aside 5-year moratorium

The Supreme Court on Thursday held that the Pharmacy Council of India's (PCI) move to ban new institutes for five years, imposed restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution. [Pharmacy Council of India v Rajeev College of Pharmacy & Ors].A bench of Justices BR Gavai and PS Narasimha, while dismissing the appeals of the PCI noted that the resolutions enabling the moratorium were in the nature of an executive instruction, and without framing regulations first as was required. The bench made clear that reasonable restrictions, including regulations to maintain standards of education, on fundamental rights could not be imposed through a circular or policy decision. " ... this Court has categorically held that a citizen cannot be deprived of the said right except in accordance with law. It has further been held that the requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. It has been held that such a law must be one enacted by the legislature," the Court said..BackgroundThe top court was hearing a batch of pleas relating to the ban on opening new Pharmacy colleges in the country, as per a Pharmacy Council of India notification. The Chhattisgarh High Court had in April quashed two orders of the PCI imposing a moratorium on the opening of new pharmacy colleges for five years.Justice P Sam Koshy had held that the right to establish, commence and operate an educational institution is a fundamental right, guaranteed to any person or entity and could only be abridged under a 'law' fitting within the four corners of Article 13(3)(a) of the Constitution.The Delhi High Court had in March acted on similar lines. Justice Prateek Jalan had ruled that such regulatory decisions with far-reaching consequences upon citizens require scientific study and supporting data, while not going into if such notifications were ultra vires the PCI Act.A similar order was also passed by the Karnataka High Court in November. .Counsel for the appellant- PCI submitted before the top court that the body is filled with competent experts to take such regulatory decisions, and the Pharmacy Act makes clear that it has the power to regulate pharmaceutical education in the country. Further, such powers include the power to prohibit towards preventing the mushrooming of such institutes. Counsel for the respondents submitted that the PCI had acted arbitrarily, as it imposed similar caps on States, irrespective of their population, for the number of pharmaceutical colleges allowed. Further, the Act did not give express powers to impose a moratorium, and so the body had acted discriminately. .Citing several precedents, the bench at the outset stated that it was clear that " ... though there is a fundamental right to establish educational institutions, the same can be subject to reasonable restrictions, which are found necessary in the general public interest. However, the question that requires to be answered is as to whether the same can be done by executive instructions or not."Relying on the Supreme decisions in State of Bihar and others vs Project Uchcha Vidya and State of MP vs Thakur Bharat Singh, the top court further emphasised that the the rights of citizens could not be infringed upon through executive action." ... the State or its officers cannot exercise its executive authority to infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued," it said.The Court accordingly concluded that 'a blanket prohibition' as was done by the PCI could not have been pushed through an executive decision. .Before parting with the judgment, the Bench observed that even if restrictions to prevent mushrooming of institutes are necessary in public interest, the same must be done strictly in accordance with law. The right to establish an educational institution does not come with the right to have it recognised or affiliated, and the concerned authorties are at liberty to grant or deny the same no-objection certificates as the need may be, it was stated. "In a particular area, if there are more than sufficient number of institutions already existing, the Central Council [of the PCI] can always take into consideration as to whether it is necessary or not to increase the number of institutions in such an area," the judgment stated..The appellant-PCI was represented by Senior Advocate Maninder Singh. Senior Advocates Rakesh Dwivedi and Vinay Navare with advocates Amit Pai, Sanjay Sharawat, Siddharth R Gupta, and Shivam Singh, appeared for the respondents (private pharmaceutical colleges). .[Read Judgment]